Harper v. Best

• Decision Date: 21 April 2016
• Docket Number: No. 10–15–00105–CV,10–15–00105–CV
• Citation: 493 S.W.3d 105
• Parties: Paul Reed Harper, Appellant v. George Darrell Best, Appellee
• Court: Texas Court of Appeals

493 S.W.3d 105

Paul Reed Harper, Appellant

v.George Darrell Best, Appellee

No. 10–15–00105–CV

Court of Appeals of Texas, Waco.

Opinion delivered and filed April 21, 2016

Rehearing Overruled July 13, 2016

Mary H. Barkley, Christopher Brown, David B. Dowell, Cantey Hanger, LLP, Fort Worth, TX, for Appellant/Relator.

Andrew W. Lucas, Assistant County Attorney, Glen Rose, TX, for Appellees/Respondents.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

OPINION

TOM GRAY

, Chief Justice

George Best filed a petition to remove Paul Reed Harper as a board member of the Somervell County Hospital District. The State of Texas assumed the role of plaintiff pursuant to section 87.018(b)

and (d) of the Texas Local Government Code. Tex. Loc. Gov't Code Ann. § 87.018(b), (d) (West 2008). Harper filed a motion to dismiss pursuant to the Texas Citizens Participation Act or TCPA (also known as the “Anti–SLAPP” statute), see Tex. Civ. Prac. & Rem.Code Ann. § 27.001, et seq. (West 2014), alleging that the removal petition was based on Harper's exercise of his right to petition and/or his right of free speech. Id. § 27.005(b). After a hearing, the trial court overruled Harper's motion to dismiss because the trial court did not “think the County or the State brought this with any animosity to try to prevent anything.” Because the trial court erred in denying Harper's motion to dismiss, the trial court's order is reversed and this case is remanded to the trial court for the rendition of an order granting Harper's motion to dismiss and to consider Harper's request for court costs, reasonable attorney's fees, and sanctions. See Tex. Civ. Prac. & Rem.Code Ann. § 27.009(a) (West 2014).

Background

Harper was unhappy with the operations of the Somervell County Hospital District. In particular, he was unhappy with being taxed to operate the hospital. He ran for election as a hospital district board member. He ran on the platform that he would vote to set the hospital district tax rate at zero. The State alleged that once elected, Harper tried to fulfill his campaign promise. At a board meeting, he allegedly responded to a motion to set the tax rate with the comment, “I'd vote for zero.” Later, a blog posted by Harper's wife was critical of the hospital administrator and other board members. Further, at some point, Harper had text communications with other board members regarding what he believed were various problems with the hospital district and the hospital and its administration.

Best, a citizen of Somervell County, filed a petition to remove Harper as a board member of the hospital district pursuant to Chapter 87, Subchapter B of the Texas Local Government Code alleging Harper was incompetent by gross ignorance of his official duties and gross carelessness in discharging those duties. See

Tex. Loc. Gov't Code Ann. §§ 87.013

and 87.015 (West 2008). The basis of Best's petition was that Harper's efforts to set the tax rate at zero were contrary to the continued existence of the hospital which, in turn, was contrary to the bylaws of the hospital district.

The State subsequently appeared in the suit and amended the style of the case to reflect that the petition for removal was brought in the name of the State and on the relation of Best. See id. § 87.018(b)

, (d) ; see also

Garcia v. Laughlin , 155 Tex. 261, 285 S.W.2d 191, 194 (1955) (“Individual citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official.”). The State added a claim that Harper violated the Open Meetings Act by communicating with other board members by text.

In layman's terms, the State takes the position that, by trying to reduce or eliminate the hospital district tax, Harper committed treason against the hospital district which, once elected, Harper had taken an oath to protect. Or, in other words, the State's argument is that by not voting to tax the citizens to allow for the continued existence of the hospital, Harper has failed in his duties to the hospital district.

This case presents a new question in the evolution of a citizen's interaction with government. On one side of the issue is a courthouse that is open to all types of suits; including suits for the removal of incompetent elected officials. On the other side is the use of the judicial process to stop citizens who choose to speak out on subjects of political importance. The question, as applied to this suit, is whether we have arrived at the place where an unhappy politically active citizen who runs for office and is elected in a general election can then be charged as incompetent when, as an elected officeholder, the elected official tries to constrain or even eliminate the organization to which he was elected. If the State of Texas can maintain a suit to hold an elected official incompetent under these circumstances, we have effectively criminalized the ability to shrink government by the political process. Historically there would be no way to summarily stop such a suit.

However, even before recent legislation to provide a summary means to stop such suits from going forward, the Beaumont Court of Appeals explained why courts should not get involved in this type of dispute over essentially political decisions. See Harper v. Taylor , 490 S.W.2d 227, 229–230 (Tex.App.—Beaumont 1972, no writ)

. The issue in Harper v. Taylor involved the sufficiency of the evidence to remove members of a school board for their decision to remove a superintendent. In arriving at a determination that the appellees' remedy was political, not judicial, the appellate court stated:

Ours is a system of checks and balances and was devised by men who feared too much concentration of power and dispersed it at some cost, at times, to efficiency in government. No division of our democracy, and no individual, be he judge or otherwise, has any monopoly on the knowledge of the route society must take to reach a better and more just way of life. When public officials manifestly violate their duty, courts must have the courage to remove them or negate their actions. But where in a discretionary decision, such as here, the most that can be said is that perhaps poor judgment was used; for the courts to fly in and substitute their judgment for that of elected officials would be to undermine the very foundation of our political system. For over the long haul, we hew to the belief that the wisdom and instincts of the electorate is preferable to any other system of government devised by man.

Id. at 230

. The pro- and anti-superintendent factions could be compared to the tax and no-tax factions in this case.

This case addresses that concern headlong and forthright under new legislation to protect the participation of citizens in the political discourse on topics of public concern. We conclude the government cannot proceed with this type litigation against a citizen engaged in that public discourse, even when that citizen is trying to dismantle the entity to which they are elected.

Texas Citizen Participation Act

In three issues on appeal, Harper asserts the trial court erred in denying Harper's motion to dismiss because the claims against Harper were based on, related to, or were in response to Harper's right to petition government and his right to free speech; the State did not present “clear and specific evidence” of a prima facie case of its claims; and if it did, Harper's affirmative defense of legislative immunity exempts Harper from the claims.

Law

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex.2015)

. The Act provides a special procedure for the expedited dismissal of such suits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2014) (“If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”). A two-step process is initiated by the motion of a defendant who believes that the lawsuit is in response to the defendant's exercise of First Amendment rights. Lipsky, 460 S.W.3d at 586.

Under the first step, the burden is on the movant, typically a defendant, to show “by a preponderance of the evidence” that the plaintiff's claim “is based on, relates to, or is in response to the [defendant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.” Tex. Civ. Prac. & Rem.Code Ann. § 27.005(b)

(West 2014); Lipsky, 460 S.W.3d at 586–87. If the defendant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to establish by “clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem.Code Ann. § 27.005(c) (West 2014); In re Lipsky, 460 S.W.3d at 587.

Within defined time limits, the trial court must rule on the motion and must dismiss the plaintiff's claim if the defendant's constitutional rights are implicated and the plaintiff has not met the required showing of a prima facie case. Tex. Civ. Prac. & Rem. Code Ann. § 27.005 (West 2014)

; In re Lipsky, 460 S.W.3d at 587. In determining whether the plaintiffs claim should be dismissed, the trial court is to consider the pleadings and any supporting and opposing affidavits. Tex. Civ. Prac. & Rem.Code Ann. § 27.006(a) (West 2014); In re Lipsky, 460 S.W.3d at 587.

Enforcement Action

The TCPA provides exceptions to the application of the statute. As relevant to this case, the TCPA “does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” Tex. Civ. Prac. & Rem.Code Ann. § 27.10(a) (West 2014).¹...